Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO.MHCC01-002365-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.474 OF 2019
IN
STAMP NO.1864 OF 2019
Christabel Fernandes W/o. S.A. Fernandes ]
and Ors. ]....Applicants
(Original Plaintiffs.)
Versus
Municipal Corporation for ]
Greater Mumbai. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 22nd April, 2019.
Mr. Yusuf Khan, Advocate for plaintiffs.
Ms. Chavan, Advocate for DefendantS/MCGM.
O R D E R
1. The plaintiffs' have taken out this Chamber Summons to amend
the plaint to add the averments and prayers as described in ScheduleA
to the Chamber Summons.
2. It is the plaintiffs' case that in present suit when the defendant
MCGM filed affidavit in reply with list of documents, for the first time
they came to know about certain new documents enclosed with List of
documents filed by the defendant Corporation. Those documents were
never within the knowledge of the applicants. These documents are
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vital records and go to the root of the matter. If the plaintiffs do not
amend the plaint in the light of these documents and do not challenge
the Notices therein along with a speaking Order, they will be non suited
on that ground.
3. The defendant Corporation has opposed the Chamber Summons
on the ground that the earlier Notices and speaking Order were the
subject matter of challenge in earlier suit which came to be dismissed by
this Court. Said order has attained finality. Since the plaintiff in L.C.
Suit No.244 of 2017 failed to get any relief, therefore, the tenants i.e.
present plaintiffs have filed new suit with malafide intention. If the
amendment is allowed the entire nature of the suit will change. The
plaintiff is trying to misguide this Court and is trying to fill up the lacuna
in the plaint. If the Chamber Summons is dismissed no loss or harm will
be caused to the plaintiff.
4. Perused. Heard.
5. A bare perusal the ScheduleA the Chamber Summons reveals that
the plaintiff is intending to incorporate the avearments regarding the
notice issued in the year 2016, the averments regarding L.C. Suit
1308/2014 and the proceedings therein. The plaintiffs also intend to
incorporate averments regarding speaking Order dated 21.1.2017, the
letters for regularization dated 11.09.2017 and 19.09.2017, the effect of
Judgment dated 07.03.2018 of the Hon'ble Bombay High Court in Writ
Petition No.2669 of 2014. The plaintiffs intend to add averments that the
Notices, speaking Order etc. were never served upon the plaintiffs and
therefore those are not binding upon them and are null and void. The
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consequential change in prayer clause is also sought.
6. The proceedings do indicate that the defendant Corporation has
produced various documents with List Exh.4 which include the copy of
Notice under Section 351 of MMC Act dated 23.10.2016, the speaking
Order dated 21.8.2017 and the proceedings of another suit. Considering
the circumstances, and the nature of amendments sought, in order to
decide the real controversy in the matter the amendment appears
necessary. The objection of the defendant Corporation that the plaintiffs
were aware of these notices and orders can only be gone into after these
averments become part of plaint pleadings. Prejudging said issue at this
stage is not warranted. Considering the stage of the suit, the amendment
as sought can be liberally allowed. No prejudice will be caused to the
defendant Corporation as the written statement is not yet filed by the
defendant Corporation. In such circumstances, I hold that the Chamber
Summons needs to be allowed. Advocate for defendant submitted that
the Hon'ble Bombay High Court has ordered demolition of the building.
Hence, the order:
ORDER
1. Chamber Summons No.474 of 2019 is made absolute in terms of
prayer Clause (a).
2. Plaintiff to carry out the amendment in the plaint on or before
25.4.2019 as per ScheduleA and shall serve the copy of amended
plaint on the defendant Corporation.
3. Defendant Corporation is at liberty to file additional reply and
written statement.
Sd/
(A.N. MARE)
Judge,
22/04/2019 City Civil Court, Mumbai.
Dictated On : 22.04.2019
Transcribed on : 24.04.2019
HHJ Signed on : 24.04.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
24.04.2019 01.45 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
22.04.2019
JUDGEMENT /ORDER signed by
P.O. on
24.04.2019
JUDGEMENT /ORDER uploaded
on
24.04.2019
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